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Blame McCain-Feingold, not Citizens, for dark money

Robert Robb, The Republic | azcentral.com
Published 4:52 p.m. MT May 20, 2014

** ADVANCE FOR MONDAY, JAN. 11 AND THEREAFTER ** FILE - In this March 20, 2002 file photo, Sen. Russ Feingold, D-Wis., left, and Sen. John McCain, R-Ariz., smile during a rally on Capitol Hill in Washington. Companies air special commercials around sports championships, big awards shows and other major televised events to market their products and services. Could voters soon see them running Super Bowl-style ads promoting congressional and presidential candidates at election time? (AP Photo/Dennis Cook, File)(Photo: Dennis Cook AP)

Some rich guys or gals really don't like Attorney General Tom Horne. He, she or they are spending a reported $345,000 on televisions ads highlighting Horne's failure to stop after hitting a car in a parking lot and FBI speculation that it was because he wanted to conceal an affair he was having with an employee in his office.

Who's forking out the dough? We don't know, and because the ads call for Horne's resignation, not his defeat at the ballot box, the front group for the ads, the Arizona Public Integrity Alliance, says it doesn't have to disclose the contributors.

Anonymous political speech – the so-called dark money – will play big in Arizona elections this year. There have already been anonymous attack ads against two GOP gubernatorial candidates. And the money is already pouring into two of Arizona's three congressional swing districts.

Inevitably, this will all be blamed on the U.S. Supreme Court's Citizens United decision in 2010, which found that corporations and unions could engage in express advocacy in candidate elections. In actuality, it's John McCain's fault.

Prior to the passage of McCain-Feingold in 2002, rich people who wanted to play politics gave their money to candidates and party committees. McCain-Feingold limited what rich people could give in the aggregate in the formal political process, where disclosure of contributions is required. The current limit is $123,200 per election cycle, with sublimits for contributions to candidates, party committees and political action committees.

Rich people who wanted to spend more than that on politics had to find a new way to do it. And boy, did they.

According to the Center for Responsive Politics, less than $6 million was spent on anonymous campaign speech in 2004, and liberal groups actually spent slightly more than conservative ones. By 2008, two years before Citizens, that increased to nearly $70 million. And the tilt had become decisively conservative.

Anonymous campaign speech exploded again in 2012, to more than $310 million, which was wrongly attributed to Citizens. Instead, rich people with an interest in politics had come to like the new way of playing the game after McCain-Feingold.

Prior to McCain-Feingold, rich people gave their money to party pols, who decided where and how it got spent. After McCain-Feingold, rich people made those decisions directly. They hired the political consultants, determined the targets and approved the political messaging. And they could do it anonymously, without the political kickback of disclosure.

Not surprising that caught on, particularly with rich conservatives, who have an instinctive distrust of politicians and party operatives.

For all the hullabaloo, Citizens didn't really do much. In 1976, the U.S. Supreme Court had said that government could restrict campaign contributions to candidates, but not political speech about them. In 1978, the court found that corporations had First Amendment political speech rights.

Prior to Citizens, rich people could, and did, pool their money anonymously into non-profit corporations and run faux issue ads during campaign season. All Citizens did was to allow them to drop the pretense and actually call for the vote.

Nothing in Citizens increased the amount of money rich people could spend on political speech. And nothing in Citizens struck down or altered any disclosure requirements.

What gets blamed on Citizens is sometimes amusing. In 2012, so-called dark money flowed into campaigns trying to defeat two ballot propositions in Arizona, one creating a top-two primary system and the other adopting a one-cent sales tax principally for education.

This was widely blamed on Citizens, which had nothing to do with ballot measure campaigns. Those campaigns could have been funded exactly the same way, with the same amount of disclosure, in 2008 as they were in 2012.

And nothing in Citizens changed the legal question, under Arizona law, of whether the anti-Horne group has to register and report.

This year, the court struck down the McCain-Feingold aggregate limits that spawned the anonymous campaign speech phenomenon. So, some money will flow back into the reportable, formal process.

But probably not enough to meaningfully reduce the influence of anonymous campaign speech. Rich people like the control and the anonymity. And forcing disclosure is a lot easier to call for than to craft, legally and politically.

Reach Robb at robert.robb@arizonarepublic.com. Follow him on Twitter at @RJRobb.